Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1887-02-22
CALIFORNIA LEGISL AZURE.
TWENTY EIGHTH SESSION = FIFTlETH
DAY.
ASSEMBLY.


over a million dollars of the school money OF
| the State. 1t was introduced by Senator woo
man, and reads as follows:
WHEREAS, On the Sd day of March, 1883 the
| Legislature of California passed Assembly con-
current resolution No. 20, directing the Gov
ernor to fix the compensation for services rem
| dered by Captain John Aullan, which resolution
| recited thatthe Governor and State Surveyor Cen
| eral of the State had theretoior respectively ap
| pointed Captain John Mullan, of San Francisco,
| California, agent and attorney to represent the
interests OF the state OF California before the
proper authorities of the United States. at Wash
| ington, d. C in the matter of the claim of this
Stateto five per cent net proceeds OF the sale of
| the public lands by the United States in this
| State and also in certain other matters in said
resolution named; and whereas, in fact the
| Governor of the state had never appointed said
| Captain John Mullan such agent and attorney,
and neither the Governor or Suryeyor-General
| had any authority TO make such appointment
| and any ratification or confirmation of said void
| Act would itself be void; and whereas, the
| sum due the State in the matter mentioned is
| much larger than was represented, amounting
| to more than 81 600 co., and the compensation
| provided for the contemplated services would
| be exorbitant, and an outrageous waste of
moneys devoted to the support OF the public or
| common schools of this State-a fund of the
| most sacred character-that could never have
| been intended by the Legislature, had the full
purport of the resolution been understood; and
! whereas, delay has arisen i'll the passage of the
| Act of Congress, making such grant to the
| school fund, by reason of the 1nequitable and
| unjustifiable claim of said Captain John Mullan,
under said above named resolution, and the
passage OF said resolution is delaying and
| jeopardiZng the rights OF the State i'll securing
| so large sum to be devoted to the education OF
| the people of the State: now, therefore, be it
Res0lred by the Senate, the Assembly cOncUrrirg,
| That so much of said resolution as attempts TO
| confirm the pretended appointment OF Captain
| John Mullan as agent and attorney of the State
in the matter above named, be and the same is
| hereby rescinded, abrogated and repealed, and
| the authority alleged or pretended to have been
conferred upon the Governor to fix the COM
penSation for his services at 20 per cent, OF such
sum as might be obtained, be hereby revoked,
annulled and declared of no effect whatever;
and be it further
Resolred, That the people of the State of Cali
fornia pledge themselves, through their Legis-
lature, to mold and administer every part of
such sum as may be granted by the United States
as sacredly devoted to the support of the public
| and common schools of the State, and especially
to be guarded against all attempts of spoliation
or fraudulent dminutiOn.
Several of the standing committees made re-
ports on unimportant measures in their hands.
Ohleyer, of the Committee on Water Rights
and Drainage, filed the following minority re-
port, which was read by the clerk:
" The undersigned, a minority of the Commit
tee on Water Rights and Drainage, do recon-
mend that A. b. 45l, entitled, AN Act TO pro-
vide for the impounding of mining debris, do
not pass and we assign the following reasons
for our recommendation:
" First-There is no necessity for any of the
%
travene the established law of the State as de-
termined by the highest judicial tribunals,
which interfere with the vested rights of prop
erty, and which, therefore, contravene the Con-
stitution.
"Second-The provisions contained in said bill
with reference to the formation of corporations
are entirely unnecessary, because at the present
| time, under Section 2S6 of the Civil Code pri-
vate corporations may be formed for any legiti-
mate purpose to exercise any legitimate power
connected with the industry of mining, or the
restraining of mining debris; and the laws on
the subject OF corporations, to be found In the
Civil Code of this State, ample and sufficient
to enable such a corporation to exercise all the
powers essential to the successful conduct OF the
business of mining, or any business connected
with that industry.
"Thir u he provision in said bill, with refer
! ence to the rgAt of such corporation to exer-
| else the power of eminent domain, for the pur
| pose of cCndemning sites upon which to locate
restraining dams is already substantially con-
| tanned i'll Subdivision Y. of Section 1888 of the
Code of Civil Procedure. AS, however, the pur-
pose of private mining is private use for which
the right of eminent domain may not be exer
cised, even by the direction of the Legislature,
that subdivision of Section 1898 has been de-
| clared to be unconstitutional, by the Supreme
Court of this State, in the case of the Console
| dated Channel Company vs. the Central Pacific
Railroad Company ct al, to be found on page
269 of the 51st California Reports, The attempt,
| therefore, is now being made by the friends of
this bill, to re-enact this provision into the stat
utes of the State, in defiance of the Constitution
as interpreted by the Court of last resort and
We are of the opinion that our duties as legisla-
| tors as fixed by our constitutional oaths, should
| admonish us to obey the Constitution, and to re-
fuse to give our official sanction to p DIVISION
| in any law which that instrument prohibits this
| body from enacting.
Fourth-The only purpose ifany that can e
| accomplished by this bill, is an indirect sane
ton by the Legislature of the process of by
| draulic mining, with continuation of the in
! juries which it has hitherto entailed upon the
| people of the valley counties thus giving to
| that industry new impe us which will again
necessitate an expensive and lengthy litigation,
an increase of the injuries, not only to the nav
igable streams, but to the lands of private indi-
viduals residing upon and near their banks.
| This sanction or recognition will be as uncOn-
! sttutional as the legislation would be if it IN
| dertook to directly authorize the injuries which
would necessarily follow a continuation of this
process of mining, and it is unquestionably be-
| yond the power of the Legislature to authorize
! such injuries or sanction the impairment of the
| Gold Run D. and NJ. CO., 66 Cal, 15l-2
| The people of the Sacramento valley
! who constitute not an inconsiderable por
| ton of the body polite. certainly have some
| rights which il is the duty of this Legislature
to respect: and we think that after thirty years
of serious injury to their property, and ten years
| of expensive litigation in which, by united and
continuous effort, they have succeeded in es-
tablishing the law in their favor, they have
right to protest against an effort made by their
representatives, to throw back upon them the
fortunes have been expended for the purpose of
partially averting. We challenge the right of
legislative body in disregard of the commands
of the constitution, TO authorize, directly or in
Cirectly, an invasion of the property rights of
the citizen, and we insist that 1t is no longer
debatable question that, II hydraulic mining
under the plans of this bill Will result in injury,
it can neither be authorized nor sanctioned by
this Legislature without an absolute violation
OF the Sscred rights of the citizen as guaranteed
by the fundamental law
Fifth-If by the plans proposed to be adoDted
in this bill hydraulic mining may be conducted
without injury, those plans may be adopted and
carried into effect without legislation or any
sanction o. this Legislature direct or indirect
Common sense Will teach any reasonable man
that any person may conduct hydraulic or any
other mining without any provision of positive
law, passed by this or any other Legislature. if
he can do so without lnlUrlng others. The ele-
ment of illegality in mining by the hydraulic
mining process is the injury which results from
it. This was so expressly held by the Supreme
Court of this State in the Gold Run case, to be
found on pages 156 and 157 of the 65th Califor-
mia Reports. There is, therefore, no necessity
for this legislation if the object is to authorize
the conduct of this species Of mining in a law
ful manner and without injury to the just rights
of others If, however, its object is 10 authorize
or indirec ly sanction that species of mining in
disregard of the rights of others, then the peo
pie whose properly is imperled may justly APP
peal to the Constitution as their shield and de-
mand that the members of this body, with
proper regard to- their constitutional Oaths,
shall refuse to give Their sanction thus INDIRECT
" to a violauon of their rights of property
which will destroy the security of THEN homes
and bring ruin and bankruptcy, when pros
perity would therwise prevail
When the reading of the file was reached,
there being but bare quorum present. all the
bills on the second and third reading file were
temporarily passed and the large portion of the
day devoted to the reading OF bills a fist
time.
Hyde made motion that when the House
adjourn for the day it do so 10 P. NJ. on Wednes-
day.
Briefly moved to amend by making it 10 A NJ.
Wednesday.
Wright offered an amendment to make it 10
A. NJ tomorrow. He then made an argument
in favor OF celebrating Washington's Birthday
by toiog a good substantial, honest days work
for the State and not go skipping over the
country doing nothing and drawing per diem
from the people strOng-box.
Briefly moved that the entire subject matter
be made n special order for P. N. TO day.
Wright moved to amend by making it 11:s0
Pm.
Briefly said he would accept the amendment
and it was so ordered He at the same time
remarked that he had heard that G. Washing
ton. who cut down cherry trees, that were not
affected with the san Jose scale, was quite
politician in his day, and one of those orators
! that was never known to slop over. For this
! and many other worthy traits in the character